Welcome to the October 2012 edition of ContractAlert from SEQ Legal.
Right to resell software licence
The biggest IT law event of the summer was the controversial judgment from the ECJ in UsedSoft v Oracle (see also the SCL summary of the case). The ECJ decided that the exclusive right of a copyright owner to distribute a copy of a downloadable software program within the EU is exhausted upon the first sale of that program within the EU, and that the copyright owner cannot contractually restrict the resale that copy. However, in the case of a licence block covering multiple users, customers cannot on-sell just part of the licence block. If you sell software within the EU, you should be considering the impact of this decision on your business and your licence documentation.
Distance selling and T&Cs
The ECJ has ruled that the requirement under the Distance Selling Directive that consumers receive certain information in a "durable medium" is not satisfied by the emailing of hyperlinks pointing at web pages containing the relevant information. If you sell to consumers online, you need to check not just the content of your legal T&Cs, but also their position in your contracting processes.
Agency model for online sales
Yet more legal news from the EU. After a Commission investigation, Apple and some of the world's big-name publishers (HarperCollins, Simon & Schuster, Macmillan and Hachette Livre) have agreed to dismantle their agency deals for the resale of ebooks. The Commission investigation was prompted by concerns that the agency arrangements were designed to fix resale prices and prevent price competition. If you're considering using an agency structure for the sale of electronic products, you should study this saga first.
IP small claims
At the start of this month the Patents County Court introduced a new "small claims track" for IP cases, designed to make small-scale IP litigation cheaper and easier. The track is suitable for copyright, trade mark and unregistered design disputes, and features an informal hearing without the need for legal representation. Cases must be worth £5,000 or less to be allocated to the new track.
Orphan works directive
Copyright works of unknown (or uncontactable) authorship are known as orphans, and are a long-standing problem for publishers of all stripes. To alleviate the problem, the Commission has adopted a proposal for a directive that will establish common rules on the usage of orphan works across the EU.
I've not yet heard any reports of formal proceedings being brought in the UK against website operators failing to copy with the cookie consent laws, but there have been rumblings from the ICO that indicate we might see regulatory action in the not-to-distant future - against a handful of higher profile sites probably.
Domain name disputes
After dropping back between 2001 and 2004, and then again in 2008, WIPO's figures for 2012 suggest that the number of domain names disputes is continuing on the upward trend we've seen since 2009. Good news for domain name specialists, but no-one else.
New and updated documents
New SEQ Legal documents created since the last edition of ContractAlert are:
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